ROLLS v BECHARA [1990] NSWCA 158

ROLLS v BECHARA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 9 April 1990

[1990] NSWCA 158

Mahoney JA This is an application to strike out the appeal. The appeal was lodged on 17 July 1985. It is an appeal from a judgment of his Honour Judge Herron in the District Court. The proceedings have been through a course of arbitration and then came before his Honour. His Honour ultimately gave judgment for the plaintiff. Nothing appears to have been done to execute on the judgment. It is said that no steps were taken by either party pending the outcome of an unrelated matter which dealt with the principles involved in this proceeding. That matter was, the court is informed, a proceeding in the High Court. It was disposed of in 1987.

Following the decision of the High Court in 1987, the next step taken, as far as the evidence appears, was that on 31 September 1988 the solicitors for the plaintiff indicated that, unless this appeal was proceeded with, application would be made to strike it out. On 31 January 1989 a further letter was written recording a telephone conversation relating to a change or possible change of solicitors and indicating instructions to move to strike out the appeal for want of prosecution.

On 21 March 1989 the new solicitors wrote and said they were attempting to do something, indicating that, as I understand the position, they did not have the file. It appears from what the court has been informed that they subsequently received the file in April 1989. Since that time nothing has been done except that on 27 February 1990 the present motion was filed seeking an order that the appeal be struck out.

On neither side has the appeal been dealt with with great diligence. I say that upon the basis of the evidence which is presently before the court. I make no judgment against the parties because I do not necessarily have before me all of the evidence which could be put before the court, for example an application against an individual for failing to proceed with the appeal or to strike out the appeal with appropriate diligence. The question that now arises is: in view of what has been done or not done by both parties, what order should the court make in respect of the appeal? The application made by the applicant is that the appeal be struck out. The respondent says that it desires to pursue the appeal with all vigour. In the circumstances, I think that neither party can be proud of what has happened. I say that, again emphasising that I speak only upon the evidence that is before the court. I think the proper course to take is to give the appellant one last chance to show that the appeal is being processed with due diligence.